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In Re Estate of Tomlinson

JULY 25, 1975.

IN RE ESTATE OF JOSIE A. TOMLINSON, DECEASED. — (KATHERINE D. SHELTON, PETITIONER-APPELLANT,

v.

FIRST NATIONAL BANK OF PEORIA, EX'R OF THE ESTATE OF JOSIE A. TOMLINSON, DECEASED, ET AL., RESPONDENTS. — (AMERICAN CANCER SOCIETY, RESPONDENT-APPELLEE.))



APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT A. CONEY, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Petitioner, Katherine Shelton (formerly Katherine South), appeals from a decree construing a gift to the "Cancer Research Fund" in the residuary clause of the will of Josie Tomlinson, a/k/a Josie Awick, as intending a bequest to the Illinois Division Inc., of the American Cancer Society (hereinafter called "Cancer Society"). It having been stipulated by the parties that there is not now and never was an organization known or chartered as the "Cancer Research Fund," petitioner contends the bequest fails because the language and evidence does not identify the intended beneficiary and that the property, therefore, passes as intestate estate to decedent's heirs at law, including her as an adopted daughter.

Testatrix died February 28, 1973, a resident of Peoria County, where her will, dated May 31, 1951, was admitted to probate; First National Bank of Peoria is executor. The will in relevant parts recites:

"I, Josie Awick, also known as Josie Tomlinson * * * do * * * publish * * * the following * * * [as my] * * * Last Will * * *.

1. I declare that I am a spinster; that my parents are both dead and that my only living relatives are my brother, William Awick * * * and my sister, Clara Goldhammer * * *; that I have never been married and I have never legally adopted any child or children.

2. I direct that all my just debts * * * be paid * * *.

3. I * * * bequeath unto Catherine South * * * the sum of Fifty Dollars ($50.00).

4. I * * * bequeath unto Joseph C Risius; my sister, Clara Goldhammer * * *; and my brother, William Awick, each the sum of $50.00.

5. I * * * bequeath unto Connie Kay Risius, the sum of Four Hundred Forty-Six dollars ($446.00) which represented * * * my share of the settlement of the claim for wrongful death of Albert Tomlinson * * * [to be paid in installments] * * *.

6. I * * * give * * * Five Hundred Dollars ($500.00) each to * * * [three churches] * * *.

7. All the rest, residue and remainder of my property * * * I give * * * to The First National Bank of Peoria * * * as Trustee * * * upon the terms and conditions * * * set forth:

(a) My said Trustee shall convert all of the remainder * * * into cash [with discretion and powers to sell] * * *.

(b) My said Trustee shall then erect a suitable * * * monument upon my grave * * * [and provide for perpetual care] * * *.

(c) I order and direct that my said Trustee shall then distribute all of the remainder of my said estate to the Cancer ...


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